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SUSHMA filed a consumer case on 15 Mar 2019 against NEW JINDAL CROCKERY STORE in the Panchkula Consumer Court. The case no is CC/104/2018 and the judgment uploaded on 18 Mar 2019.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA
Consumer Complaint No | : | 104 of 2018 |
Date of Institution | : | 30.05.2018 |
Date of Decision | : | 15.03.2019 |
Sushma w/o Kanwar Lal Chaudhary, resident of House No.214, Tricity Homes Block D, Peer Muchalla, Zirakpur. ….Complainant
Versus
….Opposite Parties
COMPLAINT UNDER
Before: Mr.Satpal, President.
Dr. Pawan Kumar Saini, Member.
Dr.Sushma Garg, Member.
For the Parties: Mr. Varun Katyal, Advocate for complainant.
Mr. Abhineet Taneja, Advocate for Op No.1.
Defence of OPs No.2 and 3 already struck off vide order dated 06.12.2018.
ORDER
(Satpal, President)
1. The brief facts of the present complaint are that on 14.10.2017, the complainant purchased an exhaust fan of Rs.1050/- from OP No.1 vide bill No.6297. After opening the rapper of the said exhaust fan, the complainant found that the said exhaust fan was damaged and was not working. The complainant brought this fact to the knowledge of the OP No.1, but he flatly refused to return/exchange the same with new one. The said exhaust fan was within the warranty but the OP No.1 was not replacing the same with new one. On 02.11.2017, the complainant also sent a legal notice to OPs through registered post, which was duly received by the OPs, but they failed to refund the amount to the complainant; this act and conduct of the Ops amount to deficiency in service on their part; hence, this complaint.
2. Upon notice, the OPs No.1 to 3 have appeared to contest the complaint.
The OP No.1 has filed the written statement taking some preliminary objections that the complainant has not approached this Forum with clean hands as the same has concealed and suppressed the material facts from this Forum; the complainant is stopped from her own act and conduct to file the present complaint. It is stated that complaint is liable to be dismissed as no evidence whatsoever has been placed on record by the complainant to prove that the exhaust fan purchased by the complainant is damaged. Even if the complainant leads any such evidence, in that eventuality also, it is submitted here that no evidence has been placed on record by the complainant to prove that the exhaust fan was damaged at the time of its purchase. Further stated that all the customers, who buy electronic products check their working thoroughly before purchasing it and only after being satisfied, they make the payment. Similarly, in the present case also, the complainant checked the working condition of the exhaust fan and only after that, she made the payment of Rs.1050/-. In case of any external damage has been caused to the fan, there may be variety of reasons for the same like mishandling of the exhaust fan while taking the same to her house, there may be mishandling by electrician etc. the OP No.1 cannot be fastened with any liability in case, any external damage has been caused to the fan due to negligence of the complainant herself. Further stated that the complainant neither brought the exhaust fan for repair to the OP No.1 nor lodged any complaint with the OP no.2 (Manufacturer) due to the reason that there is no defect in the exhaust fan. Had there been any defect, the complainant would have immediately lodged the complaint with OP No.2 on its toll free number but it was never done by the complainant. The said fact itself proves that even the motor of exhaust fan is also working properly. However, if it is found that there is any problem in the motor of the exhaust fan, the OP No.2 is responsible to repair it as per the terms and conditions of the warranty.
On merits, it is denied that the exhaust fan is damaged and is not working. The complainant has not led any evidence to prove her contention. Even if it is presumed without admitting that there is any external damage to the exhaust fan, the OP No.1 cannot be liable. Further stated that the complainant had sent the legal notice without showing the exhaust fan even for once which itself shows that the complainant was trying to hide her own negligence and was merely interested in refund of the money; thus, there is no deficiency in service on the part of OP No.1 and as such, the complaint of the complainant is liable to be dismissed with costs.
On the other hand, the OP No.2 and 3 did not file their written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OPs No.2 and 3 was closed by this Forum vide its order dated 06.12.2018.
3. The ld. counsel for the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R1/A and closed the evidence.
4. We have heard the ld. counsel for the complainant, learned counsel for the Op No.1 and gone through the record minutely and carefully.
It is evident that the complainant purchased an exhaust fan from OP No.1 vide bill No.6297 for an amount of Rs.1050/-. The grievances of the complainant are that she had taken the said exhaust fan in an enclosed box covered with a wrapper and upon opening the wrapper it was found that the fan was damaged and non-functional and thereupon contacted the OP No.1 for the replacement of the said damaged exhaust fan. Finding no response, the complainant sent a registered legal notice dated 02.11.2017 to the OPs requesting for the replacement of the exhaust fan or to refund the cost price of the said exhaust fan. Further, finding no response, the complainant approached this Forum by way of filing the present complaint against the OPs. The OP No.2, who is manufacturer put his appearance on 11.07.2018 through its authorized representative Mr. Bhuvan Purohit, Manager and OP No.3 who is allegedly involved in marketing the products of OP No2 appeared on 11.07.2018 through its Authorized Representative Mr. Ashok Sharma. However, none appeared on behalf of OP No.2 and 3 thereafter. Accordingly, defence of OP No.2 and 3 was struck off vide its order dated 06.12.2018. The OP No.1 has contested the claim of the complainant stating that the version of the complainant alleging damage in the purchased exhaust fan is not substantiated by any expert report. The ld. counsel for the OP No.1 has contended that the exhaust fan was delivered to the complainant after its proper checking and that there was no external damage to the exhaust fan and if there was any such damage that could have been due to the mis-handling of the exhaust fan at the level of the complainant during its transportation from the showroom of the OP No.1 to the house of the complainant. The ld. counsel asserted that the complainant never approached the OP No.1 with regard to the damage in the exhaust fan and filed this complaint directly without bringing her grievances into the notice of OP No.1. The ld. counsel strongly contended that it was incumbent upon the complainant to submit the export report in order to substantiate her allegations with regard to damaged condition of the exhaust fan. The ld. counsel asserted that in the absence of any expert report, the complaint is liable to be dismissed and in this regard the ld. counsel placed reliance upon the order dated 12.07.2017 passed by the Hon’ble State Consumer Disputes Redressal Commission, Haryana in case titled as M/s Durga Automobiles Vs. Ved Parkash and another in FA No.1189 of 2016. Continuing the arguments, the ld. counsel invited the attention of this Forum towards Section 13 of the Consumer Protection Act which mandates the complainant to get the product inspected through a laboratory or an expert. Concluding the arguments, the ld. counsel stated that there was no lapse on the part of OP No.1 as it had sold the product to the complainant in the same condition as it was received from the manufacturer i.e. OP No.2 and thus, prayed for dismissal of the complaint qua OP No.1.
5. After hearing the arguments and perusing the entire record available on the file we find force in the contention of the complainant. The exhaust fan in question was purchased from OP No.1 on 14.10.2017 by the complainant about which there is no dispute between the parties. The version of the complainant with regard to the fact that the exhaust fan upon opening its outer cover i.e. wrapper was found damaged seems to be corrected and genuine as the OPs including the OP No.1 did not produce/adduce the evidence of the concerned electrician in whose presence the said exhaust fan was allegedly got checked and found correct. In the absence of evidence of the alleged electrician no reliance can be placed upon the bald assertions of the OP No.1 that the exhaust fan was handed over to the complainant after its proper checking. However, we agree with the contention of the OP No.1 that it had sold the packed articles to the complainant as it was received from OP No.2 and thus, no liability in the matter can be fastened upon OP No.1. The OP No.2, who is manufacturer and OP No.3 who is involved in marketing of the product of the OP No.2 have not controverted or rebutted the version of the complainant, which is substantiated by his affidavit Annexure CA and bill Annexure C-1. The OPs also did not bother to respond to the legal notice Annexure C-2. Even after appearing in the present complaint the OP No.2 and OP No.3 preferred not to contest the present complaint as no written statement including evidence has been brought on record. Thus, the version of complainant goes uncontroverted and unrebutted, insofar, as OPs No.2 and 3 are concerned. In view of the afore stated factual position, we are of the view that it was incumbent upon the OPs to depute any technical person/electrician to check the condition of exhaust fan in question. However, the OPs did not take the pains to depute any electrician to contact the complainant for the checking of the exhaust fan in question. Therefore, we are of the considered view that there has been lapse and deficiency while delivering services to the complainant. Hence, the complainant is entitled to relief.
6. As discussed above the OP No.1 is not liable to compensate the complainant and hence, the complaint is dismissed qua OP No.1.
7. As a sequel to the above discussion, we partly allow the present complaint against OPs No.2 and 3 with the following directions:-
8. The OPs No.2 and 3 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.2 and 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced
15.03.2019 Dr.Sushma Garg Dr. Pawan Kumar Saini Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
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